GOVERNOR-GENERAL IN COUNCIL Vs. VISHESHWAR LAL

JUDGEMENT

(1.) The question involved in this revision is whether the petitioner, who is defendant in the suit, is liable to pay damages amounting to Rs. 75/-flowing from loss of goods, in course of transit through the defendant's railways consigned by the plaintiff under risk notes, A and B. The plaintiff based his cause of action on the following allegations, namely, that a consignment of rice was booked from Nirmali, a railway station on the 0. T. Railway through E.I. and B.N. Railways to Joychandi Pahar, a station on the last railway line, under invoice No. 10 of 16-9- 43. At the delivery two bags out of the consignment consisting of 109 bags were found torn and parts of the contents pilfered resulting in a shortage of 2 maunds and 20 seers as found on re-weighment. The shortage was, it was claimed, due to pilferage owing to the misconduct on the part of the railway administration concerned and their employees. The act of negligence, it was alleged in the plaint, consisted in failure on the part of the railway employees to observe the railway standing orders in connection with loading of goods and storage thereof as well as selection of wagon. In short, they were charged with reckless disregard of duty in not taking reasonable precaution against possible damage and pilferage. The bags of rice were found stacked near the flap doors of the wagon which were defective so much so that there was sufficient gap to allow pilferage.

(2.) The defendant, who represented the three Railways mentioned above, set up the defence that the consignment in suit was carried at owner's risk and was covered by risk notes, B and A on account of the fact that the bags were single and the contents liable to wastage in transit and the owner wanted to avail of reduced rate of freight. With regard to the misconduct and neglect on the part of the railway administrations or their servants, it was pleaded that the consignment in suit was made over to the E.I. Railway at Mokamehghat where it was properly loaded in a wagon which was duly sealed and rivetted, and it reached Asansol with the Mokamehghat seals intact in due course. The consignment was received at Asansol in good condition and was transshipped into and properly loaded, well away from the doors in a wagon which was free from defects. At Asansol the wagon was made over to the B.N. Railway. The wagon was duly sealed and rivetted. It is further alleged that the wagon reached Joychandi Pahar the station of destination, with both sides Asansol seals intact. On being unloaded on the same day, two bags put of the consignment were found torn and slack near the flap door with a total shortage of two maunds and twenty seers. Delivery was granted on the next day under qualified remark of the shortage noticed. By way of explaining as to the bags being found torn and slack near the flap doors, it was said that they must have got there in the normal oscillation of the wagon while in transit and were tern presumably either on account of the fact that the bags used were single and gave way in transit or on account of interference through the usual crevices of the flap doors by some unknown agency Somewhere in course of transit, a circumstance over which the carrying railways had no control. As such it was pleaded that the defendants are not at all liable for the plaintiff's claim and are amply protected under the terms of risk notes A and B.

(3.) The suit was tried by the Munsif of Raghunathpur, in his Small Cause Court jurisdiction. The controversies before him were: (1) Whether the goods were carried under Railway risk or not; (2) whether there has been proper service of notice; and (3) whether the plaintiff is entitled to any damages or not. He found that the consignment was covered by risk notes A and B duly signed and executed by the person authorised to represent the consignor, and that there was a proper service of notice in compliance with the provisions of law. With regard to the plaintiff's title to damages, he passed a decree in his favour holding that the plaintiff had been able to prove that there had been a deliberate mishandling by, at least the East Indian Railway Co., in dealing with the goods. He bases his finding, as is apparent to me on reading the judgment, on the following facts and circumstances, namely, (1) There is no evidence as to the manner of loading at Mokamehghat where the consignment was found intact. (2) At Asansol, though the seals and rivets put at the doors of the wagon at Mokamehghat were intact, three bags were received torn at the Asansol station, though the bags were found from the middle of the stacks. (3) A wire message of pilferage from the Goods Clerk at Asansol was sent to the Watch and Ward Department. (4) A further shortage of 30 seers was discovered at Joyachandi Pahar the station of destination, where the bags were found at flap doors in torn condition and (5) In spite of the message of pilferage sent at Asansol, no steps seem to have been taken by the Watch and Ward Department. The learned Munsif seems to have attached great importance to the condition of the bags as found at Asansol while lying in the middle of the stack. The evidence adduced by the defendant is that at Asansol the Mokamehghat seals and rivets were intact. Evidently, this evidence precludes the theory of pilferage from outside. It could only be achieved through railway servants who could replace the seals and rivets intact after having stolen the goods. If the matter rested there, I would have found nothing wrong with the Munsif's conclusion as this would be a clear circumstance to indicate misconduct on the part of the railway administration's servants. With regard to the condition of the bags at Joyachandi Pahar, nothing can be said with any amount of certainty pointing to misconduct on the part of the railway servants largely because the bags might have come up near the flap doors by normal oscillation of the wagon in traffic, and the torn condition may be due to defective packing as risk note A conclusively suggests. The only laches that could be attributed to the railway administration may, if at all, consist in not closing the crevices near the flap doors of the wagon which could admit of pilferage through outside agency.